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Kathleen C. Lopresti v. Unemployment Compensation Board of Review

October 31, 2012

KATHLEEN C. LOPRESTI, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: September 28, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Kathleen C. Lopresti (Claimant) petitions for review of the April 27, 2012, order of the Unemployment Compensation Board of Review (UCBR), affirming the referee's dismissal of Claimant's appeal as untimely. We affirm.

Claimant received a notice of determination from the local service center denying benefits on November 21, 2011. (UCBR's Findings of Fact, No.

1.) The notice informed Claimant that the deadline for filing an appeal was December 6, 2011. (UCBR's Findings of Fact, No. 5.)

Claimant's attorney attempted to fax an appeal to the Allentown Unemployment Compensation Center (AUCC) on December 1, 2011. (UCBR's Findings of Fact, No. 7.) The fax machine received a "no answer" response. (Id.) No further attempt to fax the appeal or to file the appeal by another method occurred until January 9, 2012.*fn1 (UCBR's Findings of Fact, Nos. 6, 8.)

The referee dismissed the appeal as untimely. Claimant appealed the decision to the UCBR, which affirmed. This appeal followed.*fn2

Claimant argues that the UCBR erred by failing to consider the merits of the appeal nunc pro tunc. We disagree.

Section 501(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e) (emphasis added), provides:

Unless the claimant or last employer . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.

The method for filing appeals with the UCBR is set forth in the UCBR's regulation at 34 Pa. Code §101.82(b)(3)(ii), which provides that "[a] party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed."

"An appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct, either by a third party or by the appellant." Mountain Home Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). However, "[t]he burden to establish the right to have an untimely appeal considered is a heavy one." Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appellant must show that either "the administrative authority engaged ...


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